Johnson v. State

671 So. 2d 454, 1995 WL 588341
CourtLouisiana Court of Appeal
DecidedOctober 6, 1995
Docket95 CA 0003
StatusPublished
Cited by19 cases

This text of 671 So. 2d 454 (Johnson v. State) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 671 So. 2d 454, 1995 WL 588341 (La. Ct. App. 1995).

Opinion

671 So.2d 454 (1995)

Betty Jo JOHNSON
v.
STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.

No. 95 CA 0003.

Court of Appeal of Louisiana, First Circuit.

October 6, 1995.
Writ Denied January 5, 1996.

*456 Robert L. Beck, Jr., Alexandria, for Plaintiff-Appellant-I, Betty Jo Johnson.

W. Steve Mannear, Baton Rouge, for Defendant-Appellant-II, State of La. through the Dept. of Public Safety and Corrections.

Before CARTER and PITCHER, JJ., and CRAIN[1], J. Pro Tem.

HILLARY J. CRAIN, Judge Pro Tem.

Plaintiff, Betty Jo Johnson, brought this suit against the State of Louisiana through the Department of Public Safety and Corrections ("DPSC") and their employee, Chad Barrere, as a result of an automobile accident in which Ms. Johnson was a passenger in a van owned by DPSC and driven by Mr. Barrere.

After a bench trial, judgment was rendered ordering defendants, DPSC and Chad Barrere, to pay Ms. Johnson $9,060.26 for medical expenses and $5,000.00 in general damages. Both plaintiff and defendants appeal.

ASSIGNMENTS OF ERROR

Plaintiff makes the following assignments of error:

1. The district court was clearly wrong in finding that plaintiff failed to carry her burden of proof regarding causation.
2. The district court erred as a matter of law in failing to apply the presumption of causation as set forth in Housley v. Cense, 579 So.2d 973 (La.1991).
3. The district court erred in awarding only $9,060.26 in medical expenses and $5,000.00 in general damages and in rejecting plaintiff's claims for disability, lost wages, and loss of enjoyment of life.

Defendants assign as error the district court's award to plaintiff of $9,060.26 for medical expenses.

FACTS

On March 30, 1989, the DPSC van in which plaintiff was riding backed into a parked mail van. Plaintiff received medical attention immediately after the accident. The next day, plaintiff visited Dr. Edward Norton, a general practitioner, with complaints of headache and pain in her neck, shoulders, lower back, right knee and right arm. Dr. Norton diagnosed cervical and lumbar strain and treated Ms. Johnson accordingly.

At the time of the accident, Ms. Johnson was recovering from foot surgery performed by an orthopedic surgeon, Dr. Rifat Nawas. At a post-operative visit with Dr. Nawas in April, 1989, plaintiff complained of neck and lower back pain and related the circumstances of the accident to the doctor. He diagnosed neck and lower back strain/sprain and possible left sciatica. A muscle relaxant and anti-inflammatory were prescribed. Several weeks later, an MRI was performed on her lumbar region, which showed no significant abnormalities. Ms. Johnson discontinued her treatment with Dr. Norton and remained under Dr. Nawas care for the injuries she received in the accident.

In October, 1989, Dr. Nawas ordered an MRI of plaintiff's cervical region, as she continued to complain of pain. This test showed two herniated disks at C5 and C6. Ms. Johnson underwent an anterior diskectomy and inner body fusion in November, 1989. The surgery was performed by Dr. Nawas.

Ms. Johnson was released for work in February, 1990. She returned to her job as food technician at a local school. Ms. Johnson was required to assist in preparing and serving breakfast and lunch and cleaning the equipment and facility. The job involved manual labor including lifting and carrying weights in excess of thirty pounds.

Plaintiff continued to see Dr. Nawas with complaints of pain in the back of her neck, shoulders, arms and lower back. The doctor attributed part of her symptoms to the cervical disk injury aggravated by heavy work. In August, 1992, Dr. Nawas recommended *457 that Ms. Johnson take early retirement from her job with the school. He opined that Ms. Johnson has a permanent disability of ten to fifteen percent and should avoid employment which involves bending, repeated head turning, lifting over twenty-five pounds and working with her arms at heights above shoulder height. She did as the doctor suggested and took disability retirement.

ANALYSIS

Plaintiff's first two assignments of error relate to the court's ruling on causation. The court's discussion of causation in the written reasons for judgment is puzzling.

The district court found that the plaintiff carried her burden of proof regarding the occurrence of the accident, liability of defendants and her back condition. The court, however, specifically held that plaintiff "failed to carry her burden of proof by establishing the causal connection between the accident and her injuries." The court then awarded damages to plaintiff after finding no causal connection. The court reasoned that "the defendant[s] were negligent in causing this accident and are responsible for the proximate results thereof."

Causation

Plaintiff bears the burden of proving causation by a preponderance of the evidence. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759. However, the plaintiff is entitled to a presumption of causation if a) she was in good health before the accident, b) symptoms of the alleged injury began with the accident and were thereafter continuously manifested, and c) the medical evidence shows a reasonable possibility of a causal connection between the accident and the injury. Housley v. Cerise, 579 So.2d 973, 980 (La.1991); Arceneaux v. Howard, 633 So.2d 207, 209-210 (La.App. 1st Cir.1993), writ denied, 93-3128 (La. 2/11/94), 634 So.2d 833. If the plaintiff can show that she is entitled to the presumption of causation, the burden of proof then shifts to the defendant to prove that some other particular incident could have caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 at 6, 650 So.2d at 761.

Although plaintiff argued in her post-trial brief that the presumption of causation was applicable, there is no evidence in the record that the district court considered the applicability of the presumption.

The court's finding regarding causation is a finding of fact and must be reviewed under the manifest error standard. Housley v. Cerise, 579 So.2d at 979. However, if the plaintiff is entitled to the presumption of causation and the district court failed to apply the presumption, legal error resulted requiring a de novo review of the entire record to determine if causation was proved. Arceneaux v. Howard 633 So.2d at 211.

We must first determine whether the plaintiff was entitled to the presumption of causation. In order to make this decision, we must determine if plaintiff proved that she was in good health before the accident, symptoms of her injury were manifested at the time of the accident and continued thereafter, and medical evidence supports the reasonable possibility that the injury was caused by the accident.

We find that Ms. Johnson has shown that she was in good health at the time of the accident. On the date of the accident, Ms. Johnson was employed by the school board as a food technician. She held this job for approximately four and one-half years before the accident. Ms. Johnson was required to undergo annual physical examinations which, as stated by plaintiff, she passed. She testified that she had no physical problems before the accident which kept her from working, with the exception of heel surgery from which she was recovering at the time of accident.

The foot surgery was performed in October, 1988 by Dr.

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Bluebook (online)
671 So. 2d 454, 1995 WL 588341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-lactapp-1995.